Hilton

This is an action to restrain the defendants from diverting the waters of a stream in the county of Modoc. The stream flows through the lands of both the plaintiff and the defendants, and they are all riparian proprietors, the defendants’ land lying on the stream above that of the plaintiff.

*586 It appears by the findings that the amount of water carried by the stream is about 250 inches under a four-inch pressure, and that of such amount of water the defendants were the proprietors by prior appropriation of 25 inches. The court also found that the defendants had, by means of dams constructed in the stream and ditches leading out therefrom, diverted all the water of the stream, so as that none of it reached, by its natural flow, the lower riparian proprietors; that all the lands of the plaintiff were irrigated by the stream flowing naturally and spreading over it; and that a portion of the defendants’ land was also irrigated in the same way, as also by the twenty-five inches of water obtained by a prior appropriation.

Finding that all the parties to the action were riparian proprietors, and that the defendants were also appropriators to the amount of twenty-five inches of the…

I concur in the judgment, on the last ground stated in the foregoing opinion. The whole controversy between these parties could have been fully determined under the issues raised by the complaint and answer, and the cross-complaints were entirely unnecessary. The prevailing custom of encumbering the records and complicating the issues by unnecessary pleadings should be discouraged, and the judgment, if right, should not be reversed, for the reason that the demurrers were sustained to these useless pleadings.

A petition for a rehearing having been filed, the following opinion was rendered thereon on the 18th of July, 1890:—

The Court.—Rehearing denied. The decision of the Department is in conflict with an expression used by the court in Bank in Heilbron v. Canal Co., 76 Cal. 15 , where it says: “The action is one in tort, and no affirmative relief could _ be granted.” But the expression so used in the case cited is in conflict with the express provisions of section 442 of the Code of Civil Procedure, if *590 construed as meaning that in no case of an action for tort a cross-complaint would he proper, or affirmative relief be granted. There are many cases of that kind where a…